Labor & Employment Law

Employer found to have unlawfully discriminated against employee because of age to pay back salary and an award for mental anguish and humiliation

Employer found to have unlawfully discriminated against employee because of age to pay back salary and an award for mental anguish and humiliation
Matter of New York State Tug Hill Commn. v New York State Div. of Human Rights, 2008 NY Slip Op 05110, Decided on June 6, 2008, Appellate Division, Fourth Department

Clark Waring Blackburn, Jr., was terminated from his position by Tug Hill in the course of ?a reorganization.? Blackburn filed a complaint with the New York State Division of Human Rights alleging that Tug Hill did not offer him, its eldest employee, an opportunity it had previously offered to a younger employee to remain employed by the Commission at a lower pay grade. Blackburn also contended that ?new younger employees were hired and existing younger employees were promoted with raises within months? of his termination from his position and that Tug Hill ?operated with more supervisory positions after his termination as supervisory employee than before his termination.?

Tug Hill, in rebuttal, claimed that it faced financial problems and that it could cut costs by eliminating positions and by redistributing Blackburn?s managerial responsibilities to more employees at lower pay grades. That redistribution, it argued, would also serve as an incentive for promotion among the non-managerial positions.

The Division rejected Tug Hill?s defense and held that it had unlawfully discriminated against Blackburn because of age. The Appellate Division sustained the Division?s determination, holding that there was substantial evidence supports the Commissioner's determination that the termination of Blackburn's employment was motivated by age discrimination and that the? legitimate, nondiscriminatory explanation? offered by Tug Hill -- it had undergone a reorganization -- was pretextual.

The court, however, did agree with Tug Hill claim that the Commissioner?s awarding Blackburn $25,000 for mental anguish and humiliation was not supported by the evidence. Instead, said the Appellate Division , an award for mental anguish and humiliation in the amount of $15,000 was supported by the evidence. In addition, it ruled that Blackburn was entitled to $114,425 for back pay, together with interest at the rate of 9% per annum, commencing September 1, 2000.

There was also a ?retirement benefit? issue to be considered. Tug Hill contended that ?the Commissioner failed to make appropriate deductions or offsets from the back pay award of pension benefits? received by Blackburn following his termination. The Appellate Division rejected Tug Hill?s argument, pointing out that those benefits ?were earned by complainant based on his prior employment with the State of New York and were provided to him through the State retirement system.? Accordingly, said the court, ?Tug Hill has not been required to pay complainant twice for the same time period, i.e., for both pension benefits and back pay.?

In addition, the Appellate Division found that Blackburn had provided evidence that the unlawful termination of his employment by Tug Hill resulted in a reduction of his length of service in the State retirement system and a loss of pension benefits as a result.

However, two judges dissented. Presiding Judge Scudder and Judge Lunn voted to annul the Division?s determination, stating that they ?cannot agree with the majority that there is substantial evidence in the record to support the determination of the Commissioner of respondent-petitioner New York State Division of Human Rights (Commissioner) that age played a role in the decision of petitioner-respondent (petitioner) to terminate the employment of respondent-petitioner Clark Waring Blackburn, Jr.?

The full text of the decision is posted at:

http://nypublicpersonnellawarchives.blogspot.com/2008/06/employer-found-to-have-unlawfully.html

Full post as published by New York Public Personnel Law on June 10, 2008 (boomark / email).